ABT Settlement Results in Changes to Asylum EAD Clock Policy

By Ilissa Mira

On November 4, 2013, a final settlement agreement was approved in the nationwide class action B.H. et al. v. U.S. Citizenship and Immigration Services, et al., No. CV11-2108-RAJ(W.D. Wash.December 15, 2011) (referred to as the “ABT Settlement Agreement”). The lawsuit challenged Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services (USCIS) policies for administering the “asylum EAD clock.” As a result of the settlement, the government has agreed to several policy changes meant to clarify asylum EAD clock regulations, improve transparency in the management of the asylum clock process, and address unfair clock stoppages. In addition, EOIR released an updated Operating Policies and Procedures Memorandum (OPPM) 13-02, offering guidelines for implementing the ABT settlement agreement and superseding asylum EAD clock guidance published in OPPM 11-02.

The term “asylum clock” is commonly used to describe two related processes:

1) The asylum adjudication clock, which refers to the 180-day period within which asylum applications must be adjudicated after they are filed. INA §208(d)(5)(A)(iii); and

2) The asylum EAD clock, which measures the 180-day period after filing for asylum that an applicant must wait before receiving an EAD. INA §208(d)(2). Under immigration regulations, asylum applicants may apply for an EAD “no earlier than 150 days after the date on which a complete asylum application is submitted…” 8 CFR 208.7(a)(1).

However, any delay that is requested or caused by the applicant stops the clock, preventing the asylum applicant from submitting an EAD application. 8 CFR §208.7(a)(2).

The ABT Settlement addresses the following issues:

Greater transparency in the management of EAD clocks. Every time an immigration judge (IJ) schedules a continued hearing, he or she must enter an “adjournment code” into the file. An adjournment code that reflects a delay “requested or caused by the applicant” stops the EAD clock. Prior policy, however, did not require an IJ to make the determination to stop the clock on the record. The settlement provides that the Immigration Court will now give asylum applicants written notice about the impact of different adjournment codes and that the IJ will state the reason for adjournment on the record. The updated OPPM 13-03 includes a list of adjournment codes and describes each code’s effect on the EAD clock. Greater transparency in the asylum EAD process means that the impact of an adjournment is clear. Applicants will be notified when the EAD clock is stopped and understand which events allow the clock to continue running.

In defensive asylum cases, the EAD Clock starts when an asylum application is “lodged not filed.” Under prior policy, the asylum EAD clock did not start until a complete application was filed at a hearing before an IJ. That meant that applicants were unable to start their EAD clock for extended periods of time while waiting for an immigration court hearing date. As a result of the ABT settlement, the date that a defensive asylum application is “lodged not filed” is the application filing date for the purpose of calculating EAD eligibility. An application is lodged when it is complete and submitted to the EOIR clerk. Although the application still must be filed before an IJ at a hearing, the EAD clock begins running at the time a completed application is submitted to the Court clerk.

Prolonged tolling for expedited non-detained cases. Prior policy allowed IJs to stop the asylum EAD clock if the applicant declined an expedited hearing. These hearings could be scheduled a mere 14 days out, which is often insufficient time to prepare an asylum case. An alternative hearing date could be offered months or years later, during which the asylum EAD clock would be stopped. OPPM 13-02 has been amended so that in an expedited case, a minimum of 45 days should be allowed for future hearing dates. This gives applicants a more reasonable amount of time to prepare their case without having to stop the asylum EAD clock. In detained cases, the minimum of 14 days will remain.

Notice regarding consequences of missed asylum interviews. If an asylum applicant fails to appear at an interview with USCIS without good cause, the EAD clock is permanently stopped. If the case is then referred to EOIR, EOIR does not restart the clock. Under the settlement agreement, USCIS will mail a “Failure to Appear” warning letter to asylum applicants as soon as possible after a missed interview. The letter will describe the effect of a failure to appear on EAD eligibility and list procedural steps an applicant must take to establish “good cause” for failing to appear for the interview. The asylum adjudication and EAD clocks may be restarted after resolution of missed interview based on exceptional circumstances.

Remanded asylum claims. When the BIA remands an asylum claim to the immigration judge to re-adjudicate, the number of days elapsed between initial denial and the date of the BIA remand order will be credited toward the applicant’s EAD asylum clock. Under prior practice, the asylum EAD clock might never be restarted once a case is remanded. The settlement clarifies that the Asylum EAD clock restarts on the date of the BIA remand and should continue to run and stop based on the general EOIR policies.